83 S.W. 683 | Tex. Crim. App. | 1904
Lead Opinion
This is an original application for the writ of habeas corpus, which was granted by the presiding judge, and is now before us upon an agreed statement of facts for decision. Relator was arrested under proper complaint and information for violating the local option law in Erath County; and relies for his discharge from arrest on the invalidity of the local option law of Erath County.
Relator insists that the notice for the local option election was not published for twenty consecutive days, as provided by what is known as the "Terrell Election Law," passed by the 28th Legislature. (See Acts 28th Leg., p. 133, 1903.) The statement of facts shows that the notice of said local option election was posted in each of the twenty-seven precincts of said Erath County for twenty days next before the day of said election on June 11, 1904. In view of the agreement that 27 notices were posted at the respective voting boxes, the statement of facts containing no description of said notices, we will presume they were such as required by law. In our view of this case it is immaterial whether such notices were published for the twenty consecutive days required by the Terrell Election Law. We hold that, in order to make a valid local option election, it is only necessary to comply with the character of notice required under the local option election law, and that the Terrell Election Law does not repeal by implication any of the provisions of the local option law. This question was decided by us in Shields v. State,
Relator insists that the Terrell Election Law repealed by implication the local option election law. We cannot agree with this construction of the law. It will be observed by an inspection of the Terrell Election Law that it does not propose or attempt in any of its provisions to change the general election law with reference to ordering the election for the various things and purposes involved in the general election law, prior to the time of the adoption of the Terrell Election Law. In other words the general election law contained in the Revised Statutes of 1895, provided for the election of certain State, county and municipal officers; and among other provisions stated that the notice of election should be posted twenty days. Now, the Terrell Election Law in this respect is but a bare enlargement of the old general election law as to the purpose for which the election could or should be ordered. The main insistence of relator, indicating a repeal, appears to be Section 41, which reads: "Twenty days' notice of every election ordered shall be given by notice posted up at the places of holding elections in each election precinct, which shall state the time of holding the election, the offices to be filled, and the question to be voted on, or both, as the case may be, except as herein otherwise provided." This section and Section 42 of the Terrell Election Law are almost literal copies of the general election law that existed prior to the Terrell Election Law. Then, relator cites Section 53 prescribing the oath of officers. This, in most of its salient features, is a re-enunciation of the old oath of office contained in the old election law. Section 59 of the Terrell Election Law is a bare enunciation by the Legislature that they did not intend to change the mode and manner of electing district or school officers of a city, town or village. Relator cites Section 73, which provides, that nothing stronger than coffee should be drunk by the officers holding the election. Then Section 76, which provides there shall be but one official ballot for each political party lawfully *286 nominating a candidate for office to be voted for at each general or special election in each county, city or town. Certainly, these provisions cited could not militate against the former construction of the local option law, and especially the latter provision, since the question of "political party" has nothing whatever to do with the adoption of the local option law. Section 61 provides, that in holding elections the voters shall have paid a poll tax. The main insistence appears to be, as stated, upon Sections 41 and 144, which reads: "This act is cumulative as to penalties for violating the election laws of the State and as to the mode and manner of any law, except such laws as are inconsistent with it, or in conflict herewith; provided this act shall not apply to any election held prior to February 1, 1904."
"It is a reasonable presumption that the Legislature did not intend to keep really contradictory enactments in the statute book, or to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention. (Hence it is, a rule founded in reason as well as in abundant authority, that, in order to give an act, not covering the entire ground of an earlier one, nor clearly intended as a substitute for it, the effect of repealing it; the implication of an intention to repeal must necessarily flow from the language used, disclosing a repugnancy between its provisions and those of the earlier law, so positive as to be irreconcilable by any fair, strict or liberal construction of it, which would, without destroying its evident intent and meaning, find for it a reasonable field of operation, preserving at the same time the force of the earlier law, and construing both together in harmony with the whole course of legislation upon the subject.") Endlich on Inter. of Stat., Sec. 210. A general law does not abrogate an earlier special one by mere implication. The law does not allow the exposition to revoke or alter, by construction of general words, any particular statute, where the words of the two acts, as compared with each other, are not so glaringly repugnant and irreconcilable as to indicate a legislative intent to repeal, but may have their proper operation without it. Endlich on Inter. Stat., Secs. 223, 228. This author also supports the proposition that although an act contains a repealing clause of a previous law on the subject, this clause must give way to a rational interpretation of the legislation in order to give intent to the legislative mind. (Endlich In. Stat., Sec 43.)
The Terrell Election Law is a general statute; the local option election law is a special statute, relating to localities. In Laredo v. Martin,
In Herndon v. Reed,
As stated above, and as supported by the long array of authorities cited, repeals by implication are not only not favored, but there must be an irreconcilable conflict between the two laws. In fact, the latter authorities cited seem to hold without qualification that a subsequent general statute will not repeal a pre-existing special law. It can not be seriously insisted that the local option law is not a local or special law, since it only becomes a law by adoption in the respective counties and precincts. Prior to the adoption of the Terrell Election Law, there were *288 apparent conflicts as stated above, between the general election law, with reference to the twenty days' notice, and the local option law. This court upheld the validity of a local option law where the notice had been posted twelve days, in the face of the very apparent contradiction between such law and the general election law. Now then, the mere fact that the Terrell Election Law changed the mode and manner of holding the election, does not operate to repeal the local option law, since said law, by two of its provisions above cited, says that an election for local option shall be held according to the provisions of the general election law. Certainly when said provisions are amended, the amendments would apply. Constitutional amendment provided for the payment of poll tax, and this is a provision of the Constitution disassociated from and disconnected from the Terrell Election Law. The mere fact that the same provides that persons voting should have paid their poll tax, does not conflict with the local option law, since the local option law itself says, that elections under the same shall be held according to the provisions of the general election law. It is a well known rule of statutory construction that where one statute refers to another, and such other statute is amended, such amendment would be included in the reference to such previous law. It is not necessary to cite authorities on this proposition.
Furthermore, we take it, in construing the legislative intent in the adoption of a statute, we can take into consideration contemporaneous legislative history of the act. (Endlich on Inter. of Stat., Secs. 30 and 33; Black Inter. Stat., Secs. 212, 214.) Smith v. Townsend,
We have reviewed the authorities at length in deference to the insistence of relator, and are confident that his position is not in consonance with the previous decisions of this court, the Court of Civil Appeals, and the Supreme Court of this State; and is not supported by the elementary authorities on the construction of statutes. We hold that the Terrell Election Law did not by implication repeal the local option law in any *289 of the provisions insisted upon. The relator is accordingly remanded to the custody of the officer.
Relator remanded to custody.
I agree to the conclusion reached, and will express my views. — Henderson, Judge.
Concurrence Opinion
In the opinion of my brother Brooks, the facts connected with the case are stated, and in discussing the questions, reference is here made to same. As the subject is one of some interest, in addition to what was said in that opinion, I desire to make a few observations.
The real question here involved is, whether the Terrell Election Law, which requires notices of all elections to be posted for twenty days in all election precincts of the territory where an election is held, or whether the local option election law, which requires five notices to be posted for twelve days in the territory to be affected, applies. That is, whether the Terrell Election Law supersedes and annuls the local option election law on this subject. As incident to this a larger question is embraced, that is, whether the Terrell Election Law repeals by implication the provisions of our local option law regulating elections for that purpose, regardless of whether these provisions be with reference to the mode and manner of holding elections or matters preliminary thereto.
It is conceded that the Terrell Election Law is later in point of time than the local option law. It is also conceded that if the later law effects a repeal, it is not by expression but by implication. No one will dispute the proposition that repeals by implication are not favored. The rule on this subject is well stated in Harold v. State, 16 Texas Crim. App., 157.
As a corollary to the above rule and lending strength in its application to this case, I desire to state two other propositions: 1. That while a general law will repeal a special law even by implication, the intent of the Legislature to repeal the special act by the general act, must be placed beyond any reasonable question. On this subject I quote from the text of Sutherland on Stat. Construction (Secs. 157, 158, 159), citing numerous authorities in its support. "It is a principle that a general statute, without negative words, will not repeal by implication from their repugnancy the provisions of a former one which is special or local, unless there is something in the general law or in the course of legislation upon its subject matter that makes it manifest that the Legislature contemplated and intended a repeal. * * * The general law can have full effect beyond the scope of the special law, and, by allowing the latter to operate according to its special aim, the two acts can stand together.
Unless there is plain indication of an intent that the general act shall repeal the other, it will continue to have effect, and the general words with which it conflicts will be restrained and modified accordingly. * * * These interpretations harmonize with the rule that when a general intention is expressed, and also a particular intention, *290 which is incompatible with the general one, the particular intention shall be considered an exception to the general one." Mr. Black, on this subject, uses the following language: "This rule is founded upon or expressed by the maxim, generaliaspecialibus non derogant. Thus, when the provisions of a general law applicable to the entire State are repugnant to the provisions of a previously enacted special law, applicable in a particular locality only, the passage of such general law does not operate to modify or repeal the special law, either wholly or in part, unless such modification or repeal is provided for in express words or arises by necessary implication. A local statute enacted for a particular municipality, for reasons satisfactory to the legislature, is intended to be exceptional and for the benefit of such municipality. It has been said that it is against reason to suppose that the legislature in framing a general system for the State intended to repeal a special act which the local circumstances made necessary." See Black Inter. Laws, p. 116; Endlich on Inter. of Stat., sections 230, 231.
The application of the above rule is made manifest when it is considered that the Terrell Election Law is general in its scope, covering the entire State, and the local option election law is special in its character, relating only to localities voting on the question of local option.
Another proposition that refers itself directly to the matter under consideration is the following: 2. Where the Legislature has enacted a general law on a given subject, and a special law relating to the same subject matter in part, and these laws have been construed by the courts in pari materia, — that is, the courts have so construed them as to permit both to stand — and subsequently the Legislature passes another act on the general subject, it will be presumed to have taken notice of the former laws on the same subject, and the construction placed thereon by the courts. The last general act of the Legislature on the same subject, as the prior act, will not be held to repeal the special law, unless the intention of the Legislature to work a repeal is manifest — I had almost said, it cannot be done, unless by express provision.
Now, if it shall transpire that the former law on the subject of elections (Rev. Civ. Stat., title 36) is the same in all its essential features, so far as the local option election law then existing was concerned, as the later Terrell Election Law (Gen. Laws, 28th Leg., p. 133) in its essential features regarding local option, and if the courts have harmonized the former existent laws and given effect and operation to both, within their particular spheres; then it must follow that as between the Terrell Law and the former special law the same construction must be adopted, unless it shall be shown that the former interpretation was radically wrong. In Shields v. State,
The question then presents itself, what new words of repeal or annulment are embraced in the Terrell Election Law which were not contained in the former general election law. In all reasonable intendment it rests with those who assert an essential difference, to point it out. The old election law, as well as the Terrell Election Law, intended to take its place, refers to special elections as well as general elections: both prescribing the character of notice to be given of the election, and by whom; both prescribing the character of ballot, and both prescribing the manner and form of holding the election. The only radical difference between the two laws relates to the qualification of votes — the latter act prescribing a poll tax qualification. This no doubt constituted the reason for the passage of the Terrell Law and differentiates it from the former law on the subject. In addition it may be mentioned that the Terrell Law relates to primary elections, which the former act did not embrace, and also prescribes penalties for violating the law which the former act did not. So there is nothing in the contention, that the Terrell Election Law, as to local option, has legislated on other new subjects not in harmony with the local option law, and tending to repeal it by implication. It is said, however, that the last clause of the Terrell Law, to wit, section 144, operates a repeal of the local option election law. It reads as follows: "This act is cumulative as to penalties for violating the elction laws of the State and as to the mode and manner of any law, except such laws as are inconsistent with it, or in conflict herewith; provided this act shall not apply to any election held prior to February 1, 1904." It will be noted that those who insist on a repeal of the local option election law, emphasize the language: "as to the mode and manner of any law," contending that this language absolutely implies a repeal of the local option election law as to notice, as well as other preliminary steps. Whether this relates to cumulating penalties, as to mode and manner of holding elections, or is cumulative merely as to the mode and manner of holding elections, it occurs to us, makes no difference in the construction to be placed on the language. The mode and manner of holding elections naturally and reasonably relates to the day of holding the election, and what then transpires. Norman et al. v. Thompson et al., 6 Texas Ct. Rep., 607, 72 S.W. Rep., 62. So there is no inconsistency between the provisions of the local option law, which refers to the mode and manner of holding elections, to those who are to vote at the same, and the *293 officers holding the same, and the general election law. This construction does not operate a repeal, but harmonizes the two laws. If it were an original proposition as to whether or not the Terrell Election Law repeals the local option election law as to the preliminary steps to be taken, particularly as to the notice to be given, I see no escape from the proposition, that the two laws can be harmonized and can stand together. To re-state the case: the local option election law, in regard to how and by whom the election is to be ordered, the character of notice to be given, by whom, and the time and manner of posting same; and also with reference to the character of ballots to be used, and by whom the final count of the vote is to be made, requiring it to be done by the commissioners court on the 11th day after the election, in order that the result may be declared by the proper authority, and notice thereof given, differs essentially from the Terrell Law as to these matters; but the latter does not operate to repeal the former on that account. On the contrary it is evident the Legislature never intended to bring about such a result. Understanding the construction placed by the courts, as between the former general election law and the local option election law, as it is presumed to, and knowing that they had been harmonized, so that both should stand within their respective spheres, it was never contemplated by that body, that the Terrell Law should annul the provisions of the local option election law in the respects above referred to. The former by its terms refers generally to the whole State, and the latter exceptional, and referring to the particular locality only. If a repeal had been intended under the circumstances here manifest, the Legislature would not have used vague and shadowy phraseology, but apt and explicit language would have been employed demonstrating that purpose.
The local option election law, by referring to the general election law as to who has the right to vote and as to the mode and manner of holding the election (which is provided for by the Terrell Law), stands under the shadow of that law, as to all that relates to voting on the day of the election. Whatever purity at the ballot box is guaranteed by that law, is equally guaranteed to those who vote at a local option election. At the same time those safeguards erected by the law-makers for a local option election, whereby the qualified voters can declare themselves in favor of or against local option in a particular territory, are preserved. To declare that the Terrell Election Law, as to these preliminary matters provided for in the local option election law "repeals the former by necessary implication," would produce inextricable confusion, and operate a result never intended by the law makers; and, in my view, would do violence to all the rules of statutory construction on this subject. *294